Beware of the judge's discretion


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The case of Curo Places v Walker [2018] EWHC 2462 serves as a reminder of the wide scope which a trial judge has when trying a case on a discretionary ground.

On 7 July 2015, Curo Places Limited (Curo) granted a six-year fixed term assured tenancy to Ms Walker. Problems of noise nuisance soon began. Curo therefore served a notice seeking possession (NSP). The possession claim was issued on 7 July 2016, the first anniversary of the tenancy being granted.

At trial, Ms Walker admitted to being responsible for some noise but denied other noise nuisance. She argued that much of the noise arose due to poor insulation in the building and her having two young children who woke early in the morning. She argued that she had several mental health conditions which made her impatient and gave her low tolerance levels.

Curo placed reliance on a conviction which Ms Walker had received in a Magistrates’ Court for harassment.

The judge heard sound recordings in evidence. Those recordings (described by the High Court as “underwhelming) gave the impression that Ms Walker was not directing racially abusive terms towards her neighbour but rather was simply repeating back to herself such terms which another person had used towards her. Moreover, the judge found that much of the noise nuisance was simply everyday sounds which her neighbour wrongly believed was directed towards him but which was audible because of poor insulation in the building. The judge found that if a possession order was not made, the noise disturbances would be likely to continue but at a reduced rate. He dismissed the possession claim, holding that it was not reasonable to make a possession order because much of the disturbance was the result of poor insulation in the building and because of Ms Walker’s mental health problems.

Curo appealed on the basis that the judge:

  • had erred in stating that he was not bound by the criminal conviction of Ms Walker in the Magistrates’ Court;
  • had failed to give adequate consideration to section 9A of the Housing Act 1988 (i.e. the extended discretion ground – which required him to consider the effect of the nuisance/annoyance on other persons if it were to continue);
  • should not have found that the nuisance/ annoyance could have been dealt with by way of Curo improving the sound insulation (since Ms Walker had not raised an Equality Act reasonable adjustments duty defence, nor could any reasonable adjustment require Curo to alter a physical feature of the building);
  • decided not to make a possession order which was perverse in light of his finding that the noise disturbances would continue; and
  • had erred in considering an Equality Act defence when none had been pleaded. The High Court dismissed the appeal for the following reasons:
  • whilst the trial judge was required by section 11(2) of the Civil Evidence Act 1968 to take Ms Walker to have committed a criminal offence for which she had been convicted unless she proved the contrary, this did not compel him to make a possession order notwithstanding his own view of her overall conduct;
  • section 9A of the Housing Act 1988 required the trial judge to take into account the effect that the nuisance or annoyance, if repeated, would be likely to have on persons affected. In doing so, the judge had found that most of the disturbances were caused by the reasonable activities of daily life exacerbated by poor sound insulation hence did not amount to nuisance/annoyance;
  • the trial judge had not held that Curo should have altered the structure of the building in order to improve the sound insulation in the building but had simply taken into account, as he had been entitled to do, that the disturbance caused to the neighbours had been exacerbated by the poor sound insulation in the building;
  • the trial judge had therefore not acted perversely in dismissing the possession claim; and
  • Curo had not been taken by surprise by the Equality Argument raised by Ms Walker and it had been fully argued before the trial judge, this having never been pleaded by Ms Walker.

The appeal was therefore dismissed.

This case serves as a reminder to social landlords not to lose sight of the fact that depending on the view a trial judge takes of the evidence, they could end up without an order at all.

It is also worth noting that sound recording evidence should be approached with caution. At trial, Curo had warned the judge to expect a “rather shocking” sound recording. However, the recording was described by the appeal judge as “underwhelming” and it in fact assisted Ms Walker’s case by demonstrating the poor sound insulation in the building, and how the insulting words were spaced out in time and did not sound as if they were being directed at the aggrieved neighbour.

The judgment is a reminder of the fact that whilst a neighbour may be annoyed by certain conduct of the tenant, it does not mean that it necessarily amounts to nuisance/annoyance.

The judgment also demonstrates that whilst it is always in a tenant’s interest to plead an Equality Act defence so that there is no scope for a technical point to be taken at trial about the fact that it was not pleaded, the courts will allow such arguments even when this has not been done.

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